Is It Fair to Discriminate During the Pandemic?

Ontario’s large retailers and banks have answered this question by flipping it around. Special “Seniors Only” hours abound at supermarkets and local branches of national banks. So far no one has challenged the legality of what is in effect reverse discrimination. One wonders what the Law Society would make of this. Are we honouring our obligation not to discriminate if we discriminate in favour of the vulnerable (see affirmative action)? If a lawyer is approached by a litigant who wishes to challenge this retail policy, would said lawyer be violating the obligation he checked off by taking the case? Or would he be violating it by refusing the case?

The dilemmas will soon be piercing our religious institutions as well. A president of a large synagogue will have to decide if a “Seniors Only” minyan should be instituted. If so, should seniors be given any honours at the regular non-Senior minyan? By honouring a senior at a regular minyan are we encouraging seniors to engage in dangerous behaviour? Conversely, if we refuse to allow such honours are we not discriminating against the elderly in the most direct fashion?

 The Shelter in Place orders that have swept the world confront this question more broadly: What is our collective responsibility towards the vulnerable? Are we, as a society, obligated to discriminate in favour of the vulnerable? When the vulnerable number in the tiny percentages, it seems that our answer is generally: Yes. For example, virtually no one argues that society should not, as a matter of moral policy, support the severely disabled. (Whether the support is sufficient in any given society is an entirely different question, and may highlight the difference between what we say we should support, and how seriously we mean the statement). But does that remain our answer if we must mandate that the entire economy be largely shuttered in order to ensure that as small a number of the vulnerable end up dying?

It seems that the culture of each society will end up deciding that question. In the US it involves a raging debate, street protests and highly partisan internet rants. In Ontario the culture thus far seems to be that as long as the government provides assistance to the businesses that have been negatively impacted, then: Yes, save the vulnerable.

For me, I appreciate the approach that Israel endorsed at the start of this virus. Rather than framing the debate as them (the vulnerable) and us (the less at risk), the country embraced everyone as being in the same family. Save the grandmother, they urged. The discrimination dilemmas will remain, but our empathy in deciding them will be far higher.